Title: AAT Bulletin Issue No. 39/203, 30 September 2013
Author: AAT
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin
Issue No. 14/2013	30 September 2013

AAT Bulletin
Issue No. 39/2013	30 september 2013

The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments.  
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin. 
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au.
Contents
AAT Recent Decisions
Bankruptcy
Compensation
Immigration and Citizenship
Practice and Procedure
Social Security
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.
Bankruptcy
Pescott and Inspector-General in Bankruptcy [2013] AATA 680; 24/9/2013; Deputy President SA Forgie
Contribution assessments – Fringe benefits – Value of fringe benefits – Housing right benefit – Assessing value of right – Identifying nature of right as right to occupy or as a lease –Assessment by reference to rental value – Consideration of principles – Assessment of rental value when consideration wholly in kind or partly in kind – Adjourn further consideration of value of garden maintenance and any other relevant matters

Contribution assessments – Fringe benefits – Identifying provider of right – Identifying whether provided under a right to occupy given by the owner or, under a lease or otherwise by spouse – Reconciliation of provisions relating to housing right fringe benefit with those relating to support provided by way of lodging (including board) – Right to occupy given by owner does not exclude certain income under modified definition of “fringe benefit” – Right to occupy provided by spouse may do so

PRACTICE AND PROCEDURE – Estoppel – Whether Tribunal bound to adopt finding of facts made by differently constituted Tribunal in reviewing contribution assessment relating to earlier contribution assessment period – Not bound by those findings – Whether should, as matter of discretion, adopt those findings of fact – Findings not adopted
Compensation
Chang and Military Rehabilitation and Compensation Commission [2013] AATA 677; 24/9/2013; Senior Member RG Kenny, and Dr GJ Maynard, Brigadier (Rtd), Member
Military Compensation – Impairment for “left pre-patella soft tissue injury” and “aggravation of sciatica with early signs of lumbar spondylosis at L5/S1” – Relevance of work-related psychiatric conditions (“major depressive disorder” and “anxiety disorder”) to assessment under Table 9 of the “Guide to the Assessment of the Degree of Permanent Impairment” Edition 2.1, Part 2 – Contribution by psychiatric conditions to assessment of impairment under Table 9.5 but not under Table 9.6 – Increase in impairment under Table 9.5 from 10% to 20% – Impairment of 0% under Table 9.6 of the Guide – Decision under review set aside  
Costa and Military Rehabilitation and Compensation Commission [2013] AATA 694; 27/9/2013; Senior Member RM Creyke and Dr B Hughson, Member
Military compensation – Service in the Royal Australian Air Force – Major depressive disorder – Bruxism – Date of injury – Aggravation of injury – Whether service contributed to condition to a material degree – Decision under review affirmed
Van Duren and Military Rehabilitation and Compensation Commission [2013] AATA 688; 26/9/2013; Professor RM Creyke, Senior Member
Military compensation – Entitlement to incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 19 – Incapacitated for period from October 2004 to March 2006 – Orders varied under s 43
Immigration and Citizenship
Smith and Minister for Immigration and Border Protection [2013] AATA 687; 26/9/2013; Deputy President SA Forgie
MIGRATION – Visa cancellation – Character grounds – Violent behaviour - Risk to the Australian community – Decision affirmed
Practice and Procedure
ACN 092 138 442 Pty Ltd (In Liquidation) and Commissioner of Taxation [2013] AATA 690; 27/9/2013; Senior Member JL Redfern
Proceedings – Applicant in liquidation – Leave granted by Court to lodge objection to assessment – Whether leave extended to authority to apply to the Administrative Appeals Tribunal for review of the objection decision – Whether director has standing to commence review proceedings against objection decision – Lack of authority to commence proceedings – Application may be validated by leave granted retrospectively – No order made
Jones and Civil Aviation Safety Authority [2013] AATA 674; 20/9/2013; Senior Member BJ McCabe
STAY APPLICATION – Cancellation of pilot's licence – Appropriate and desirable to grant stay – Secure the effectiveness of the hearing and decision – Time needed to gather technical evidence – Stay application granted
Social Security
Charlton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 692; 27/9/2013; Mr S Webb, Member
Age Pension – Partner Allowance – Small private business – Annual income based on taxation returns – Loss reported in drought years – Increased income in subsequent years – No record increased annual business income reported – Business income not taken into account - Over payment – Debt – No action taken to rectify notices setting out incorrect income – No special circumstances – Decision varied
Clancy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 679; 24/9/2013; Senior Member N Bell
Disability support pension – Cancellation of payment – Whether DSP correctly cancelled – Notice to provide further information – Failure to comply with requirement to provide further information – Whether special circumstances apply – Decision under review set aside
De Vries and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 691; 4/9/2013; Miss EA Shanahan, Member
Disability support pension – Medical conditions not fully diagnosed/treated and stabilised – Does not satisfy s 94(1)(b) of the Social Security Act 1991– Decision affirmed
El-Moustafa and Secretary, Department of Social Services (Formerly Secretary, Department of Education, Employment and Workplace Relations) [2013] AATA 686; 26/9/2013; Ms R Perton, Member
Newstart allowance – Whether partnered or single – Despatch of notices – Date of deemed receipt of notice – Whether review undertaken by Secretary of cancellation decision – Whether review sought 13 weeks after Secretary’s decision – Decision affirmed
Laffer and Secretary, Attorney-General’s Department [2013] AATA 676; 13/9/2013; The Hon RJ Groom AO (Deputy President)
January 2013 Tasmanian bushfires – Australian Government Disaster Recovery Payment – Volunteer fire fighter – Whether “adversely affected” by bushfires – Decision under review affirmed
Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 685; 25/9/2013; Senior Member N Isenberg
Pensions – Disability support pension – Whether the applicant’s conditions were fully diagnosed, treated and stabilised – Whether applicant’s conditions attract an impairment rating of at least 20 points – Whether the applicant has a continuing inability to work – Decision set aside
Shore and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 683; 16/8/2013; Senior Member GD Friedman
Paid arrears of Newstart allowance – Decision under review affirmed
Stevens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 675; 23/9/2013; Senior Member AF Cunningham
Disability support pension – Overseas claimant – Australian citizen married and residing in Vietnam – Whether an Australian resident at time of cancellation of pension – Decision under review affirmed
Sultan and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 678; 24/9/2013; Mr P Wulf, Member
Newstart Allowance – Unemployment as a result of a voluntary act – Whether work unsuitable due to medical condition – Whether distance and costs associated with travel excessive – Whether resignation reasonable – Eight week unemployment non-payment period – Decision under review affirmed
Taxation
The Trustee for the SR & K Hall Family Trust and Commissioner of Taxation [2013] AATA 681; 24/9/2013; Senior Member RW Dunne
SUPERANNUATION GUARANTEE – Whether applicant’s workers were employees or independent contractors – Indicia – Common law employees – Contracts wholly or principally for labour – Burden of proof – Objection decisions under review affirmed
Veterans' Affairs
Dunn and Repatriation Commission [2013] AATA 673; 20/9/2013; Deputy President SD Hotop
Veterans’ entitlements – Disability pension – Rate of disability pension – Special rate – Applicant applied for increase in rate of pension – Applicant then over 65 years – Last paid work – Applicant working as employee of another person when stopped undertaking last paid work – Applicant had not been working for that person for continuous period of at least 10 years that began before applicant turned 65 – Applicant not eligible for special rate of pension – Decision under review affirmed
Prior; Repatriation Commission and [2013] AATA 684; 24/9/2013; Deputy President RP Handley, and Dr M Couch, Member
Widow's pension – Death from suicide – Nuclear testing in Monte Bello islands – Veteran flew planes involved in Operation Mosaic – Veteran suffered from on-going skin condition causing chronic pain – Whether veteran rendered British nuclear test defence service – Whether veteran was exposed to ionising radiation – Whether veteran developed Pemphigus Erythematosus from ionising radiation exposure – Reasonable hypothesis satisfied – Not satisfied beyond reasonable doubt that incapacity did not arise from war-caused disease – Decision affirmed
Appeals 
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below. 
Appeals lodged
CASE NAME | AAT reference
No appeals lodged |
Appeals finalised
CASE NAME | AAT reference | court Reference
AP Group Limited v Commissioner of Taxation | [2012] AATA 409 | [2013] FCAFC 105
Wallis v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education | [2013] AATA 256 | [2013] FCA 978

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